THE TESTING LAB; Dangerous Sealer Stayed On Shelves After Recall

By ERIC LIPTON

Published: October 8, 2007

Walter E. Friedel's plans to waterproof the tile floors of his hot tub room using Stand 'n Seal, a do-it-yourself product sold at his local Home Depot, promised to be a quick weekend project, one he could wrap up in time to catch the Giants football game on a Sunday afternoon.

But instead of watching football that afternoon, Dr. Friedel, a 63-year-old physician, ended up being rushed to the hospital, where he would spend four days in intensive care, gasping for air, his lungs chemically inflamed.

Dr. Friedel was the latest victim of a product whose dangers had become known months earlier to the Consumer Product Safety Commission and the companies that made and sold it. Before Dr. Friedel bought Stand 'n Seal, at least 80 people had been sickened using it, two of them fatally.

But even then, with the threat well-documented, the manufacturer, retailer and the commission had failed to remove the hazard from the shelves.

The task of getting dangerous products out of consumers' reach is perhaps the most pressing challenge the Consumer Product Safety Commission faces in this era of surging recalls, particularly of products from China. It is an essential part of the agency's mission, because premarket testing is not required for consumer products in the United States.

Nancy A. Nord, the commission's acting chairwoman, said the agency was proud of its record of moving rapidly and forcefully to pull hazardous products off the market.

''The point is to get the recall out there, to get the consumer informed of what's happening and then try to get the product out of consumers' hands,'' Ms. Nord said in testimony to a House panel in September. ''I think a recall process works very well.''

But the Stand 'n Seal case is a powerful illustration of the commission's failure to fully live up to its mission.

Court documents show that, as the case unfolded, the product's maker, BRTT, appeared at times to be more concerned with protecting its bottom line than with taking steps to ensure that the hazard was removed. That meant that hazardous cans of Stand 'n Seal remained on the shelves for more than a year after the 2005 recall.

And the product that BRTT initially rushed to put in its place -- and which Dr. Friedel and others bought -- contained the same chemical that had apparently caused injuries in the first place, the company and Home Depot now acknowledge.

Critics say the Stand 'n Seal case demonstrates how the Consumer Product Safety Commission is too overwhelmed with reports of injuries and with new hazards to comprehensively investigate or follow up on many complaints. The agency's laboratory is also so antiquated it did not have the equipment necessary to evaluate fully the remedy BRTT offered -- leaving the agency to rely largely on the company's promise that it would fix the problem.

And then, after receiving repeated complaints that the hazard persisted long after the recall, the agency failed to follow up adequately, documents show.

Even if the slip-ups were a result of companies having concealed important evidence, the commission still has a responsibility to use its enforcement powers to investigate and, if appropriate, to issue fines. To date, more than two years after the commission became aware of the problems with Stand 'n Seal, no fines have been issued.

''They did not get the job done that consumers expect, and people suffered as a result,'' said R. David Pittle, who served on the commission for a decade after it was created in 1973, and later as technical director at Consumers Union, which publishes Consumer Reports.

The problem is compounded because consumers often ignore warnings about unsafe products, or simply never hear them, and continue to use flawed products even after recalls have been issued.

A lawyer for BRTT, which was then known as the Roanoke Companies, declined to comment. Home Depot issued a statement saying it never knowingly sold a hazardous product.

''The Home Depot is working with Roanoke to make sure anyone injured from this product is treated fairly,'' the statement said.

The commission's own records show a growing list of products that have been subject to ''expanded'' recalls, like Stand 'n Seal.

''A recall is not necessarily a recall, that is what it comes down to,'' said Stuart L. Goldenberg, a Minneapolis lawyer who represents a family whose child was injured using an Easy-Bake toy oven. The maker, Hasbro, alerted consumers about injuries to children's fingers from the ovens, first simply offering a repair kit, but then expanding to a full-fledged recall after dozens of additional injuries were reported.

And evidence is widespread of hazardous products -- even after recalls -- being easy to find for sale, most notably imports from China that often are sold at discount shops or on the Internet. In one instance, Baltimore health officials found lead-contaminated toy rings in stores this year, three years after they had supposedly been pulled from shelves.